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ELRCDismissedNot stated in the judgment· [2016] KEELRC 384 (KLR)

Football Kenya Federation v Chairman Sport Disputes Tribunal & another [2016] KEELRC 384 (KLR)

Employment and Labour Relations Court
14 November 2016
DMD. K. Njagi Marete
759 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed it can hear employment cases anywhere in the country and dismissed an attempt to move a case to Nairobi.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection dated 21st July 2016, by which the respondent/applicant sought transfer of the suit to the High Court in Nairobi on two grounds: that the court lacked jurisdiction to try the matter or give hearing directions, and that the suit amounted to forum shopping and an abuse of court process actuated with malice. The parties agreed on 25th July 2016 to dispose of the objection by written submissions; only the plaintiff/respondent filed submissions, the applicant ignoring the process. The plaintiff, relying on Mukhisa Biscuit Manufacturing Co. Ltd v Westend Distributors Ltd, argued that forum shopping is a question of evidence rather than law, and that the court's territorial jurisdiction cannot be questioned, citing the court's own decision in Peter Ochola Omburo v Diocesan Properties Limited to the effect that the ELRC exercises territorial jurisdiction throughout the Republic and, under Article 162(2) of the Constitution, enjoys the status of the High Court with unlimited original jurisdiction in matters within its purview. The court agreed that the objection did not conform to the Mukhisa Biscuit principles: the applicant had not demonstrated lack of jurisdiction, and the forum shopping allegation required evidence to establish, taking it outside the province of a pure point of law. The preliminary objection was dismissed on 14th November 2016, with each party bearing their own costs.

Key legal issues

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01

Whether a preliminary objection may be raised where facts must be ascertained

Holding

A preliminary objection must raise a pure point of law on assumed facts; it fails where ascertainment of facts or exercise of judicial discretion is required

Reasoning

Applying the Mukhisa Biscuit principles, the court held that the forum shopping ground is evidential, not legal, and the jurisdiction ground was unsupported. An objection requiring substantiation by evidence does not conform to the established principles and cannot succeed as a preliminary objection on a point of law.

p. 2
02

Whether territorial location of parties and cause of action can defeat the court's jurisdiction

Holding

No - the ELRC has territorial jurisdiction throughout the Republic and unlimited original jurisdiction in matters within its purview

Reasoning

The plaintiff relied on this court's earlier holding in Peter Ochola Omburo that jurisdiction cannot be sustained on geographical or territorial grounds, the court's status under Article 162(2) being equivalent to the High Court. The applicant led no contrary demonstration of lack of jurisdiction.

p. 2

Legal principles established

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  • The Employment and Labour Relations Court's jurisdiction cannot be challenged on geographical or territorial grounds; it exercises territorial jurisdiction throughout the Republic and has unlimited original jurisdiction in matters within its purview

Court orders

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  1. 1.The preliminary objection dated 21st July 2016 is dismissed
  2. 2.Each party to bear their own costs of the preliminary objection
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010 (as invoked by the parties)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Football Kenya Federation v Chairman Sport Disputes Tribunal & another [2016] KEELRC 384 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/384/eng@2016-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.